Some meningitis records must be released, judge rules

Nov. 14, 2013

Nashville attorney Gerard Stranch / Tennessean / File

Written by

Walter F. Roche Jr.

The Tennessean

In what local attorneys for victims are claiming as a major victory, a federal magistrate judge has turned aside multiple requests to quash subpoenas for records relating to the fatal fungal meningitis outbreak that took a heavy toll among Tennessee patients.

In a 28-page ruling issued Wednesday in Boston, Magistrate Judge Jennifer Boal rejected a series of arguments by health-care providers that the subpoenas were improper, too burdensome, violated patient confidentiality laws and failed to include $40-a-day witness fees.

“We think this is a huge win,” said J. Gerard Stranch, one of the Nashville lawyers representing local victims. “We’re at the point where they are going to have to give us documents.”

Also claiming victory were lawyers for the Saint Thomas Outpatient Neurosurgical Center, who noted that the ruling did limit some of the information requests and blocked others in their entirety.

“The ruling quashed some of the subpoenas entirely in several respects and limits them in others,” said Chris Tardio of Nashville, one of the lawyers for the defendants in the case.

The document requests range from patient records to emails and other communications regarding the purchase of a spinal steroid, methylprednisolone acetate, from the now-bankrupt New England Compounding Center.

Stranch charged that the defendants in the case have been stalling to avoid responding to record requests.

Among the items Boal ruled the defendants must produce are communications between the clinics and government agencies about NECC products. She dismissed claims that the information was available from public sources.

She also rejected arguments that the requests were generally too burdensome.

While Boal rejected most of the motions to quash the subpoenas, she did conclude that the health-care providers could not be required to produce records for patients who have not filed suit or otherwise indicated they have a claim.

She also ruled that clinics, like the Neurosurgical Group of Chattanooga, which were not on the U.S. Food and Drug Administration’s list of providers who received the suspect drugs do not have to respond to subpoenas issued in the cases.

In another development, yet another suit was filed Thursday on behalf of a local victim of the outbreak. The 50-page complaint charges that Kenneth Judd of Cookeville was injected with fungus-tainted steroid at the Saint Thomas Outpatient Neurosurgical Center on Aug. 17 and Sept. 7 of last year.

The suit filed by attorneys William Leader and Jon E. Jones states that Judd was first told by doctors at Saint Thomas Hospital that he had not contracted fungal meningitis, thus delaying his treatment with antifungal medications until late November of last year.

He subsequently was admitted to the hospital and remained there for two weeks.

The Judd suit, like dozens of others filed by Tennessee victims, is expected to be merged in the same suit in U.S. District Court in Boston that produced the ruling on subpoena requests.